The protracted strike by 70 000 mineworkers was the platinum elephant in the room at the 2014 Mining Indaba in Cape Town this week.

The volatile labour environment has become a major concern for companies and investors alike.

Industry experts argued that, unless there is a major shift in industrial relations and the legacy of socioeconomic deprivation faced by mineworkers is meaningfully dealt with, South Africa's mining sector will continue to suffer.

Presenters at a discussion held by the South African Institute for International Affairs said violent strikes would persist if the labour relations framework did not become more democratic and miners' living conditions were not addressed.

A director of the law firm Bowman Gilfillan, John Brand, said there was also confusion about how trade unions qualify for basic organisational rights and what qualifies a trade union to participate in collective bargaining.

"An all-out war"
Owing to problematic aspects of the Labour Relations Act, notably section 18, about what constitutes representativeness in the workplace, the Act has been poorly applied in practice, which has undermined industrial democracy. The result has been "an all-out war" for union representation, exemplified in the platinum mining industry.

The resultant tensions contributed to Marikana and continue to play out in negotiations in both the platinum- and gold-mining sectors.

Brand said the principle of "majoritarianism" is appropriate for collective bargaining, in which unions negotiate with employers on wages and working conditions, and the agreement reached between a majority union or a coalition of unions and an employer extends to all workers.

But, when it comes to gaining basic organisational rights, the practice is inappropriate.
These rights include the right to enter a workplace and recruit members, arrange stop orders from members' salaries, and represent workers in grievance and disciplinary matters.

Brand said section 18 of the Act allows a majority union and an employer to define thresholds of what is sufficiently representative in a collective agreement.

The thresholds set by it must apply equally to any registered trade union seeking organisational rights.

Locking out other unions
As an example, he said that platinum mines entered into restrictive section 18 organisational rights agreements with the National Union of Mineworkers, in effect locking out other unions — to get basic organisational rights, a union had to meet a representativeness threshold of 50% plus one.

Representativeness was measured by signed stop-order forms, but, Brand said, the Act does not provide for an independent, properly regulated way of measuring this.

The result was that newcomer Association of Mineworkers and Construction Union (Amcu) had to recruit thousands of members from outside the mine before it could get basic organisational rights.

An all-or-nothing war for the full suite of organisational and collective bargaining rights followed, Brand said, and at mines such as Lonmin, Amcu had insisted on entering into an agreement with the company to become the majority union, entrenching the status quo.

To address these problems, basic trade union rights have to be granted easily, with low thresholds for representativeness to encourage coexistence between the unions and to allow them to compete for collective bargaining rights. Brand also said that independently monitored ballots are needed to test representativeness.

Songezo Zibi, a former executive of Glencore-Xstrata, said that much more work was needed to fully understand "the true economic conditions of the workers, and the working class in general" fully.

In a press briefing, Shabangu said the problem is not with the labour law, but rather the inconsistency with which it is applied.

She criticised Amcu for insisting that it be granted majority union status at the platinum mines but in the gold sector, where it is not the dominant union, it cries foul when it comes to wage negotiations.

The Constitution strikes a balance between the rights of workers and employers, and it is "unacceptable" when strikes become violent, she said.

A government group, led by Deputy President Kgalema Motlanthe, is working on a framework agreement for a sustainable mining industry. Thanks to this, "we are seeing more compliance by unions", she said.

Amcu leader Joseph Mathunjwa said on Wednesday that the union supports "freedom of association". Although it has struck section 18 agreements with the platinum mines, it accommodates smaller unions, allowing them lower representative thresholds of about 30%, far "better than the 50%-plus-one" arrangement.

At the time, there was still talk of changes to the Act, he said.

Amending the act
The Act is being amended and changes to section 21 could water it down. The intention is to grant the Commission for Conciliation, Mediation and Arbitration the power to extend basic organisational rights to smaller unions in arbitration.

But it remains to be seen if the thresholds set by the commission will have the desired effect.

Elize Strydom, a senior executive for employment relations at the Chamber of Mines, said it supported the changes to section 21.

When it negotiates for its members in the gold and coal sectors the majority rule principle does not apply.

The NUM had not responded to requests for comments by the time of going to print.